IN THE CASE OF:	  

		BOARD DATE:  4 March 2014

		DOCKET NUMBER:  AR20130010914 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his undesirable discharge (UD) to a general, under honorable conditions discharge (GD).

2.  The applicant states he wants his UD upgraded to a GD.

3.  The applicant provides:

* self-authored statement
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 31 October 1972.  He completed basic combat training on or about 23 January 1973.

3.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he departed absent without leave (AWOL) on 6 April 1973 and he was dropped from the rolls on 6 May 1973.  

4.  On 12 December 1973, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 
6 April through on or about 6 December 1973.

5.  On 17 December 1973, having consulted with legal counsel and having been advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

6.  In his request for discharge, he acknowledged his understanding that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of his UD.  He further elected to submit a statement in his own behalf wherein he indicated:

   a.  he was married and had two children;
   
   b.  he wanted to get out of the Army even if he would be issued a UD; and
   
   c.  he acknowledged he went AWOL for 2 months.

7.  On 2 January 1974, having considered the applicant's statement, the separation authority approved the discharge recommendation and directed that he receive a UD under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  

8.  On 22 January 1974, the applicant was discharged accordingly.  The 
DD Form 214 he was issued confirms that he had completed 6 months and 19 days of total active service and accrued 248 days lost time.

9.  On 6 May 2013, the applicant petitioned the Army Discharge Review Board for an upgrade of his UD.  He exceeded the ADRB's 15-year statute of limitations and as a result applied to this Board for the same.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 10 of that regulation provides, in part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable (HD) or GD was authorized, at the time a UD was normally considered appropriate.

   b.  Paragraph 3-7a provides that an HD is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.
   
   c.  Paragraph 3-7b provides that a GD is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant seeks an upgrade of his UD.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ by a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  His request for discharge under the provisions of chapter 10, Army Regulation 635-200, includes his admission of guilt.

3.  His separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process. As a result, there is an insufficient evidentiary basis to support an upgrade of his discharge.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20130010914





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ABCMR Record of Proceedings (cont)                                         AR20130010914



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